Thankfully, Andrew Sullivan Is Not A Lawyer

Responding to President Obama’s acquisition and release of his “long-form” birth certificate, Andrew Sullivan expresses his disappointment that Obama did not do this sooner, then writes:

Here, by the way, courtesy of [Ta-Nahesi Coates], are the legal rules for publicly producing such a detailed document:

“The department shall not permit inspection of public health statistics records, or issue a certified copy of any such record or part thereof, unless it is satisfied that the applicant has a direct and tangible interest in the record.”

As TNC notes, “direct and tangible interest” means the registrant, an agent of the registrant, their parents, spouse and some others. So Obama had every reason and capacity as both the person whose birth certificate is on record, let alone as president of the US, to have done this months ago. But he decided to play rope-a-dope instead.

Ugh. This utterly misses the point, as Andrew refers only to the second of two subsections of the relevant Hawaii law cited by Ta-Nahesi Coates. That second subsection only directs that the responsible Hawaiian agency permit Obama and certain other specified persons access to the original records; it says nothing about whether such persons may make copies of those records, much less distribute them to the entire nation.

Instead, it is the first subsection cited by Coates, and which Sullivan appears to ignore, that contains the restrictions on circulating these records. That subsection (338-18(a)) states:

To protect the integrity of vital statistics records, to ensure their proper use, and to ensure the efficient and proper administration of the vital statistics system, it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital statistics records, or to copy or issue a copy of all or part of any such record, except as authorized by this part or by rules adopted by the department of health.

My emphasis.

This is far broader than the subsection cited by Sullivan, and restricts the circumstances under which not only the Hawaiian agency, but literally any person, without exception, may permit others to inspect, disclose, copy or issue a copy of that record. Obviously, a prerequisite for doing any of those activities is having access to the record in the first place, but no one has ever suggested that Obama did not himself have access to his original birth certificate. The issue was that without a properly handled waiver executed in accordance with the Hawaiian agency’s rules, it is actually illegal for one having access to those records to do anything in the way of permitting others to have access to those records. Placing those records in the public domain is of course the most extreme form of permitting others access imaginable, yet that is precisely what Obama had to get a waiver to do.

Quite literally, in order to release this document, the President had to ask to be treated as being above the law, even if it is a relatively trivial law in the grand scheme of things. Quite understandably, the State of Hawaii decided that this was a wise idea. That so many are prepared to insist that the President had an obligation to ask that he be treated as above the law from a very early date is far more troubling.

114 thoughts on “Thankfully, Andrew Sullivan Is Not A Lawyer”

(b) The department shall not permit inspection of public health statistics records, or issue a certified ***copy*** of any such record or part thereof, unless it is satisfied that the applicant has a direct and tangible interest in the record. The following persons shall be considered to have a direct and tangible interest in a public health statistics record:

Thankfully, Mark, YOU are not a lawyer. (Unless you are, in which case: ugh!)

That law applies to all vital records, including certifications of live birth, which people give to others ALL THE TIME. What you quote in subsection (a) is about public officials and employees not giving out copies.

Even if you were right — and you clearly are not — in your interpretation, it would mean Obama ran afoul of this law when he released his certification of live birth in 2008.

Worst of all, the law as you interpret it would be entirely unconstitutional: once given to me, it’s mine, and I can do what I wish with it. First Amendment. Prior restraint.

JC: No, you are wrong. Issuing a certified copy to one of the listed persons is entirely different from that person also having permission to copy and release that record to others. Part a outlaws the latter under any circumstances.

Arvind: you’re right that parts b and a are different. You’re entirely wrong that part a outlaws me making a copy of my own birth certificate. That makes no sense whatsoever, it violates the First Amendment, and it means Obama violated the law when he released his certification of live birth in 2008.

Paragraph (a) says they can’t issue a copy “except as authorized by this part.” Paragraph (b) then authorizes the department of health to “issue a certified copy” to certain persons. Obama qualifies under paragraph (b), and therefore fits the exception under paragaph (a). End of story.

This statute is intended to limit the disclosure of public health records by the department of health, not to muzzle third parties who have lawfully obtained those records.

pudge: After giving it another reading I think you’re probably right. I think the issue, then, was that Hawaii Department of Health policy was to issue only the short-form birth certificate when there is a request (reading Obama’s lawyer’s correspondence seems to imply this: http://www.whitehouse.gov/sites/default/files/rss_viewer/birth-certificate-correspondence.pdf). In any case, the President required an exception to established rules, whether they were legal or procedural, so Sullivan is a bit off base.

For those arguing that paragraph (a) bars the redistribution by third parties, keep in mind that the prohibition includes “disclos[ing] information contained in vital statistics records.” In other words, if you request your birth certificate and thereby learn certain information you didn’t previously know about your own birth (for example, the specific time or hospital), you would be prohibited from sharing this information with others.

Also, what is the point of authorizing copies of records to be issued to, for example, “[a] person who needs a death certificate for the determination of payments under a credit insurance policy,” if that person is prohibited of passing it along to the insurance company. Likewise for several of the other categories of direct and tangible interests.

Yeah, why? I only have the short form birth certificate, I walked into a passport office and got a passport. You know why? It PROVES I’m a citizen. If it’s good enough for them, it’s legally good enough to become president, whether you want to believe it or not.

Yes, the “short form” is legally adequate; but voters have every right to want to see the original documentation (not necessarily the right to get it, though).

I don’t begrudge them this in the slightest bit. I do think that it’s silly, because we have a several-times verified legal document with independent contemporary evidence (newspaper clippings), and no serious evidence against this document or the corroborating evidence, nor serious evidence for an alternate theory; but — especially in a democracy — I don’t deign to tell people what information they should and shouldn’t want access to.

Everyone has an unbounded and inalienable right to want *ANYTHING*. Everyone has an almost unbounded and inalienable right to complain about not getting every desire fulfilled.

Getting desires fulfilled is an area of very limited rights. Getting respectful hearings for complaints about not getting what one wants is an area of almost no rights.

The “long form” document whining from the Birthers is analogous to my occasional whining about not having Charlie Sheen’s sex life. It deserves to be mocked and in some ways it is wrong to pander to such desires. The “long form” isn’t legally required as documentation for anything in Hawaii. It isn’t required for any Federal legal purpose. It is an archival document. A demand for it is an implied accusation of conspiracy against not just Obama, but the Hawaii DoH and 2 governors from different parties. That’s why yesterday’s release didn’t really change anyone’s mind. The people who actually suspected the short form now just have a scan of a different document from the same people they don’t trust.

(And if I had Charlie’s “goddesses” I’d probably want new ones next year anyway…)

Sentences have contexts called paragraphs… The archival records exist for the sake of future historians, but historians don’t demand direct access to such records for living people in conflict with law. With multiple officials claiming to have seen the original and insisting that there was nothing remarkable about it, insistence that the document be released publicly is only rational if one believes they’ve all been lying.

That is why the pimps of Birtherism (i.e. not just Trump but also the overwhelming majority of prominent Republicans) mostly surround their pandering with statements of ridiculous ignorance. A serious politician is far better off looking uninformed than accusing a bipartisan collection of high elected officials and civil servants of conspiring to hide information about the President.

Sentences have contexts called paragraphs… The archival records exist for the sake of future historians, but historians don’t demand direct access to such records for living people in conflict with law.

And none of that conflicts with anything I said.

With multiple officials claiming to have seen the original and insisting that there was nothing remarkable about it, insistence that the document be released publicly is only rational if one believes they’ve all been lying.

Incorrect, as I already clearly demonstrated.

That is why the pimps of Birtherism (i.e. not just Trump but also the overwhelming majority of prominent Republicans)

You’re lying. It’s actually a very small minority of Republican officials or leaders.

A serious politician is far better off looking uninformed than accusing a bipartisan collection of high elected officials and civil servants of conspiring to hide information about the President.

Exactly, Joe. All any of us Americans ever need to prove our birthplace is a certified copy of our birth certificate (short form). The certification is our birth state’s promise that the original, handwritten longform is in the state’s safe archives. We have no reason to see the president’s (or anyone else’s, including our own) original birth certificate. Ever. This demand on the birthers’ parts was racially-driven, ugly, and embarrassing. If President Obama had a passport and an Illinois driver’s license (which was harder to get than a passport; trust me, I have both), then he was born in the United States.

The second Trump announces his candidacy, I’m going to demand to see his long form birth certificate, because the plethora of evidence showing he was born in New York isn’t enough for me.

First, you only “never” need to see an original if you have complete faith in the “birth state’s promise.” Historians will universally agree with me when I say that sometimes those documents are not accurate and you want to doublecheck by examining the original.

Plus, there’s information on originals that aren’t on the “short form” copies, including signatures and other information that may be of interest to you or someone else who’s simply interested in such things, for whatever reason.

Second, your assertion that passports and driver’s licenses may prove citizenship is true in the legal sense, but not really true otherwise. If someone doesn’t believe the “short form” certification is accurate, then why trust the existence of a passport, which was most likely acquired with the use of that “short form” certification? It’s the question-begging fallacy.

Third, while it’s true that there is NO reason to doubt the integrity of the document Obama released in 2008, to say it’s racially driven is, frankly, irrational race-baiting nonsense on your part. We saw similar evidence-less attacks on Bush’s Vietnam-era service; were those racially motivated? Of course not. This is motivated, pure and simple, by either plain old political opposition, or plain old tinfoilhattery. Either way, it’s normal, it goes both ways, and it’s got nothing whatsoever to do with race.

And don’t even get me started on the utter lies told by the left, led by RFK Jr., about how Republicans “stole” the 2004 election in Ohio. If Republicans had done that to a state Obama won, it would surely be decried as racism, as every other question of Obama’s legitimacy is decried as racism; but when the left is lying about a white Republican, eh, it’s just politics. This “racism” lie only perpetuates more animosity.

Finally, please do request any document you please, of any candidate you please. Unless you uncover something interesting, at best, no one will care, and at worst, you’ll look extremely petty and silly. I do promise you, though, that if you ask for any documents of a non-white candidate, I’ll decry it as racist.

Yes, the focus on this statute is misplaced. The real question is the regulations.

The statute doesn’t *require* that records be released to the categories of people listed. Rather it says that records can *not* be issued to people who don’t fall into those categories.

Whether the department will actually release records depends on the implementing regulations, and, apparently, the regulations provide that only the short-form, and not the long-form will typically be issued.

The question then, is whether the regulations also explicitly give the Director of Health the authority to grant waivers, and if so, what, if any, standard is required for a waiver. If, no such waiver authority exists under the regs, then the Director violated the law, and Obama acted improperly by asking the Director to do so.

But, it seems perfectly plausible to me that the regs give the Director the authority to grant waivers. Such waiver authority is common in numerous administrative contexts. And unless and until somebody takes the time to go through the regs and show that there is no such waiver authority, I’m not going to assume on the basis of pure speculation that the Director of Health violated the law.

One thing – I intentionally overstated the point about the President asking to be above the law here. As I pointed out in the original post, the agency clearly has the authority to make rules and issue waivers here. But waivers, by their very nature, are grants of exceptions from the rules.

As you say, the critical factor here is the department’s regulations, not the statute itself, something I tried (unsuccessfully, it would seem – this was far from my most deeply thought-out post) to hint at.

I’m admittedly speculating a bit here, but implicit in this post is an assumption that those regs permit a pretty wide variety of uses for the so-called “short-form” certificate, but not many uses for the “long-form” original certificate. The law certainly gives quite a bit of authority to the agency to carve out exceptions.

BUT, without those regs and exceptions, the straightforward text of the statute pretty heavily restricts what can be done with these records, including by third parties. The use of the phrase “any person” is as broad as can be and can’t be interpreted as meaning only “any person who is either a public official or a current or former agency employee.”

The restriction on disclosure of information would, to a certain extent, be unconstitutional on First Amendment grounds (but only to a certain extent – privacy laws exist, after all, as do gag orders). However, the restriction on making copies certainly would not be.

The regulations do not, in any way whatsoever, prohibit any use whatsoever of any document lawfully provided to any person. This is the part you’re missing. No waiver is necessary, and no waiver was provided! The waiver was only asked for — and granted — to GET the original birth certificate, not for any particular uses of it.

And privacy laws obviously don’t apply to release of your own information, and no, a restriction on making copies of your own birth certificate absolutely would be a violation of the First Amendment: it would be a prior restraint on publication!

So, just read the letter from Obama’s lawyer. The “waiver” request is **only** asking for a waiver of the normal policy of providing the Certification of Live Birth in lieu of the “original birth certificate.” Period.

The letter notes the “Department of Health’s longstanding policy and practice to provide only the ‘short-form’ version” and says that “[w]aiver of the Department’s policy in this instance would allow my client to make a certified copy birth certificate publicly available,” but the waiver is only for providing the original available to Obama, not for what Obama does with it once he gets it.

“The Department’s policy” being waived is in providing the “short” as opposed to “long” form certificate to Obama. That’s it. Period.

It would appear the State of Hawaii was in the process of changing the statute with regard to how a birth certificate could be released. It passed the House in January. I cannot find the Senate action, that does not mean it did not recently pass and signed by the governor.

Quote from Hawaii HB1116:

The purpose of this Act, therefore, is to allow the department of health to disclose the birth records of officials who require United States citizenship to hold public office.

SECTION 2. Section 338-1, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

“”Person of civic prominence” means a person who is a candidate for, or elected to, a public office that requires the person to be a United States citizen, either natural born or naturalized, to hold the public office for which they are a candidate or to which they have been elected.”

Please read section 338-13 and retract this woefully ignorant post. It REQUIRES the release of a copy to a person with a tangible interest. Presumably you are just stupid rather than dishonest and didn’t know about it, but if you are honest you will now do a separate post quoting that section in full. Unless you’re BOTH stupid and dishonest like Sullivan.

I’m a real lawyer who is sick of idiots like you pretending to be lawyers.

It REQUIRES the release of a copy to a person with a tangible interest.

I have already looked at 338-13. It requires the release of either a certified copy of the certificate or a certified copy of the contents of the certificate (which is to be treated in all respects as the same as the original and which I presume to be a reference to the short-form certificate). It also doesn’t address the point of this post, which has to do with what legally could be done with that document once obtained by the recipient.

Thanks for confirming that you’re just extremely dishonest. I’d love to see you actually post the full text of 338-13 and try to make the argument you’re pretending to make with a straight face.

You do, realize, don’t you, that Obama’s posting of the short form all these years would be a violation of statute under the preposterous theory you propose? Since no “exception” was authorized for that, shall we expect a prosecution of the President?

This nonsense about Hawaii law prohiting the President from making
or releasing a copies of his birth certificate was simply MADE UP a couple of weeks ago to protect him from Trump. This garbage about “exceptions” was made up today. If you can link me to any post that raised these arguments prior to April 2011, I’ll join Obama’s re-electim campaign (and please, don’t link me to crap about how the short form was what Hawaii generally released in response to standard requests).

Vitriol aside, I agree with N.E. that there is simply nothing in this law that in any way addresses what someone may do with a legally obtained copy of a relevant document. It’s just not there. There’s neither any distinction between the short and long forms in the law, at least, not any law I’ve seen (it appears to be mere administrative policy, not law, to give out short instead of long, and thus no distinction in the law).

And I suspect this theory was invented to bolster Obama’s story, and I think Obama’s refusal to release all along was done with political motivation (as his spokesman today said, they derived political benefit from not releasing the document).

But I don’t think whether release is required or not has anything to do with anything.

There’s neither any distinction between the short and long forms in the law, at least, not any law I’ve seen (it appears to be mere administrative policy, not law, to give out short instead of long, and thus no distinction in the law).

Agreed, more or less; ‘long form’ vs ‘short form’ has always been to my knowledge a pure colloquialism, at least, though it seems pretty likely to me that the ” certified copy of the contents of the certificate” language is a pretty direct authorization for the department to issue something that is not an exact facsimile of the original.

However, the statute also makes pretty clear that the department has extremely broad authority in determining what recipients may do with what documents it issues. It does not have a lot of authority in determining to whom it may issue documents, but it does look to have a lot of authority in determining the form those documents may take.

I’m also not sure what Hawaii’s version of the APA looks like (and I’m not interested enough in this subject to research it), but the distinction between a department “rule” and a department “policy,” especially in a relatively small state, is likely to be more than a little blurry.

No, there is nothing in the statute whatsoever that allows anyone to tell anyone else what to do with documents once they’ve been received. That’s where you’re wrong. And if you read the letter sent by Obama and his attorney, and the response from Hawaii, you will see that the waiver had nothing at all to do with distribution, but only which document was being requested.

Okay, time to bring a little honesty to this blog. HRS 338-13 provides:

§338-13 Certified copies. (a) Subject to the requirements of sections 338-16, 338-17, and 338-18, the department of health shall, upon request, furnish to any applicant a certified copy of any certificate, or the contents of any certificate, or any part thereof.

So this settles conclusively the issue of whether the DOH was REQUIRED to give Obama a copy of his original certificate, contrary to the recently-concocted lie of Hawaii’s Attorney General. And no, “any certificate” doesn’t mean “only the short form.” It means “any” certificate requested by the applicant. This is a far, far cry from the ridiculous claim that Obama would be marched off to jail for getting a copy.

As Obama requiring a waiver to post or distribute the copy, my my my. Your interpretation of 338-18 would quite simply prohibit any USE OR DISCLOSURE of the copies obtained for any reason. School registration, driver’s license, ANYTHING! There would be not point in issuing them at all, because they couldn’t be used for any purpose that would require them.

Additionally, as I indicated before, Obama’s posting of his short form certification would be a clear violation of the law under your interpretation. The online posting certainly “disclose[d] information contained in vital statistics records” with the meaning (your meaning) of 338-18, did it not? He never got or requested a waiver to do that. And as you said, there’s no distinction between the long and short form, so a waiver to disclose one would require a waiver to require another.

Simply put, 338-18 governs only who may access or get copies of the original, dusty contemporaneous archived records in the DOH. It places NO restrictions on dissemination of those copies once obtained by the applicant. This shameless, dishonest shilling for the President demonstrates an obsession beyond that of the craziest birther.

Oh, come now. I agree with your analysis, and I don’t know his motives, but he seems open to discussion and modification of his views based on evidence, which automatically puts him in a completely different category than “the craziest birther.”

“However, the statute also makes pretty clear that the department has extremely broad authority in determining what recipients may do with what documents it issues.”

Your whole argument here appears to hinge on the breadth of the “no person” language, but you need to look at the full statutory context. The provisions we’re arguing about are designed to provide privacy protections for the official state records (“To protect the integrity of vital statistics records, to ensure their proper use, and to ensure the efficient and proper administration of the vital statistics system . . .”). They address the obvious concern that persons with access to private personal information held by the government might reveal that information to persons with no valid interest in seeing it. To that end, it says that “no person” may provide access to, disclose the content of, or provide copies of the records, except to persons authorized by the statute.

It says nothing about third party distribution of information or copies, unless you interpret “vital statistics records” to refer not just to the official records themselves, but also to all downstream copies thereof. But that reading is implausible for several reasons: 1) it requires giving “vital statistics records” a far broader meaning than the textually similar “vital statistics system” in the the same sentence, which clearly refers only to the official government system; 2) it fits uneasily with several of the specific statutory categories of persons authorized to access records (i.e. it’s very odd to think that the legislature would specifically carve out classes of persons in the statute who are permitted access to records, but then deny them the right to use those records for the intended purpose absent some additional “rules adopted by the department of health”); 3) it doesn’t serve the apparent purpose of the statute, which was to prevent access to state records by unauthorized persons, not to muzzle authorized persons from speaking about their own records; 4) it’s exceedingly odd to provide official *certified copies* of government records that the recipient is prohibited from showing to anyone; and 5) it would likely be an unconstitutional restriction on speech.

The list of persons who may be provided with certified copies, with or without the consent of the registrant, is quite long.

I think we’re all very much in agreement that the purpose of the restrictions is to preserve the privacy of registrants, and to make sure that the records are not used for an improper purpose.

The purpose of the “any person” language, to me, is to make sure that none of the many people, both inside and outside of the state government, who are able to directly obtain copies of the records, then turn around and distribute those copies to third parties except for very limited purposes.

For example, subsection (b) says that a person having a “common ancestor” with the registrant is deemed to have a “direct and tangible interest” in the record such that the department may provide them with a copy. The law doesn’t even specify the purposes for which this rather broad category of persons may obtain the record.

Unless some other provision of Hawaii law accomplishes this end, subsection (a) is what prohibits that person, who may be an extremely distant relative with no real concern for the registrant, from distributing all of the registrant’s birth certificate information to the entire town.

This kind of restriction, even as applied to distribution of copies of certified copies, makes an infinite amount of sense as a matter of public policy when applied to everyone on that list except the registrant themself.

That the department would have wide discretion to adopt rules and practices for what specific uses are permitted with what versions of the records, and that the legislature would list few, if any, specifically permitted uses in the statute itself also makes sense: there are likely to be far too many possible legitimate uses, many of which the legislature may not even be able to anticipate, to codify into law; there also may be other circumstances where otherwise legitimate uses would prove to be highly suspect.

Still, you would think that the legislature would at least codify that the registrant themselves may do whatever they wish with the document and authorize whatever use they wish, rather than leave this up to the agency.

The purpose of the “any person” language, to me, is to make sure that none of the many people, both inside and outside of the state government, who are able to directly obtain copies of the records, then turn around and distribute those copies to third parties except for very limited purposes.

But that’s wrong. It doesn’t say that, and isn’t for that. It’s only a restraint on government dissemination.

This kind of restriction, even as applied to distribution of copies of certified copies, makes an infinite amount of sense as a matter of public policy when applied to everyone on that list except the registrant themself.

I can’t agree, as such a restriction would be a facial violation of the First Amendment. Thankfully, there is no such restriction.

That the department would have wide discretion to adopt rules and practices for what specific uses are permitted with what versions of the records, and that the legislature would list few, if any, specifically permitted uses in the statute itself also makes sense

As an administrative matter, perhaps (though I frankly don’t agree that where privacy is concerned, that anyone but the legislature should make the rules, as it leaves things too open to abuse).

But it simply makes no sense for anyone in government to legally give someone a document and then tell them what they can and can’t do with it. With very few exceptions, this isn’t how things work; and again, if that’s what this law meant, you couldn’t ever USE your birth certificate for anything other than just looking at it: not writing about it, not using it for identification, not anything.

And — again — if you read Obama’s lawyer’s letter, it only asks for a waiver of the policy that gives the “short form” in lieu of the “long form” and makes no reference to any policy about how that document is used once obtained.

And, of course, Obama’s lawyer’s letter is DEVOID of any reference to the statutory requirement under 338-13 that the applicant be given ANY DOCUMENT HE FREAKING WANTS.

I have to assume that the lawyers who represent the President are fairly high-powered, no? But somehow they just overlooked the statutory language, and decided to cite nothing at all? Most good lawyers, when their client has an absolute statutory right to a document, manage to mention that fact. And even if you disagree with my interpretation, you would agree that a competent advocate would at least try to make the case?

Speaking of dishonesty, we also know that the little letter-exchanging charade between the White House and the DOH was nothing but a PR campaign, don’t we? In fact, I think we know that Obama has had a copy of the long form all along. The administration has been in constant contact with the Hawaii DOH from day 1, drafting their public statements, and deciding when and if the long form would be released upon demand.

But that’s wrong. It doesn’t say that, and isn’t for that. It’s only a restraint on government dissemination.

I have never once come across a statute where an unqualified reference to “any person” was interpreted as a reference only to government employees. Additionally, I think by saying “to ensure their proper use,” the statute is saying that a big concern here is citizen privacy.

such a restriction would be a facial violation of the First Amendment. Thankfully, there is no such restriction.

There are many things in the world that I think are or ought to be unconstitutional but that are deemed constitutional anyways. The restrictions we are talking about here have been found constitutional in other contexts, and that something is simply a “prior restraint” is not the end of the analysis in any event (eg, viewpoint neutral prior restraints on time, place, or manner are usually constitutional).

The Fair Credit Reporting Act, for instance, contains all sorts of restraints on what private parties may do with credit report information. Those provisions have to this point been pretty consistently upheld as constitutional. Admittedly, that mostly (though not entirely) deals with commercial speech, but it also deals with information that is collected primarily from and between private persons and entities, whereas what we’re talking about here is the use of personal data collected from the government and then being put to purely private use (and rarely, if ever, to a use of public concern).

Also – generally speaking, state law prohibitions on private disclosures of SSNs have been upheld, at least as long as the private disclosures have been with respect to matters of purely private concern.

I have never once come across a statute where an unqualified reference to “any person” was interpreted as a reference only to government employees.

Technically, it’s not “government employees,” but the context of what is being provided and how is the government context. It’s all about the rules for the DOH supplying records to requestors. Look through Sect. 338: it’s all about rules for the DOH, not rules for anyone else. 338-18 is the rules for the DOH disclosing records, period.

Additionally, I think by saying “to ensure their proper use,” the statute is saying that a big concern here is citizen privacy.

Yes: there are restrictions on what government may do in order to protect citizen privacy.

The restrictions we are talking about here have been found constitutional in other contexts

Not for decades, no. Regardless, I was simply adding reasons why it the law would make no sense interpreted as you say, not giving this as a reason why it cannot be interpreted that way. It is obviously true that people can enact unconstitutional laws, but that it is so blatantly unconstitutional is just another piece of evidence that your interpretation is incorrect.

The Fair Credit Reporting Act, for instance, contains all sorts of restraints on what private parties may do with credit report information.

Not your OWN information, no, which is the basic context of this discussion.

Regardless, it’s still impossible for me to read this statute as applying to individuals: setting aside the constitutional issues, it means — and you’ve not addressed this, that I can tell — that I cannot use my own birth certificate (whichever form it takes) for any purpose other than to view it by myself. That’s evidence enough that your interpretation is incorrect.

And don’t forget — under the “argument” being made here, the individual can only look at the copy he was given — if he makes a copy of that and looks at it, it’s off to jail. Unless he first applies for a waiver to look at copy number 2.

Mark Thompson: In 2008 Barack Obama made a copy of his short form and posted it online for all to see without a waiver. Did he violate Hawaiian law?

Regardless, it’s still impossible for me to read this statute as applying to individuals: setting aside the constitutional issues, it means — and you’ve not addressed this, that I can tell — that I cannot use my own birth certificate (whichever form it takes) for any purpose other than to view it by myself.

I’m just speculating here but I suspect that there may be a reason or two to restrict this to this point.

A certificate of live birth is sufficient to get a driver’s license, to vote, to get a SSN, so on and so forth. Why, with a decent certificate of live birth and a little bit of willingness to fudge at a government building or two, you could walk away with an entirely new identity.

They’re not talking about “don’t show the certificate to Aunt Gladys.”

Now, of course, maybe they’ve got a hundred laws to cover forgery of such documents and I’m reading a lot into this law… but in wondering aloud whether there’s a situation in which that interpretation makes sense, I’d say that it’s an attempt to prevent stuff like forgery and whatnot.

There. Now you can tell me that that is obviously a crazy way to read that law.

To the point where, yeah, you’re right. You’re not even allowed to show it to someone who is not 1-13.

So the question becomes… is a birth certificate (long form) part of the set of “vital statistics records”.

The argument that it is not strikes me as odd. I mean, look at the list of folks who are explicitly excepted from the “not allowed to look at this stuff” law. It’s like the law was written to protect biological parents from being found out by their children (or nosy newspaper types).
The argument that it is allows Mark to ask the questions he’s asked.

Maybe there is a distinction made between the “long form” and “verification” (where “verification” would be “the short form”).

So it’s impossible for the law to have been written overbroadly or oversealously (for example, to protect biological parents in the case of adoption) and because we know that this is impossible, that the law must not mean what it appears to say?

The list of persons who may be provided with certified copies, with or without the consent of the registrant, is quite long.

Yes, the list of persons who may be provided with certified copies (1) OF THE ORIGINAL VITAL RECORD (2) BY THE DEPARTMENT OF HEALTH. There is NO restriction on what may be done with (1)COPIES OF THE VITAL RECORDS, (2)BY THE REGISTRANT.

Yes, this is “craziest birther” stuff. The MSM and Obamabloggers do it all the time. The game is this: make some obviously false assertion in the main story, and then later either correct it quietly in a comment or a subsequent post. All that matters is the original nuttiness is out there for all to Google.

What is being argued here is that only the person who orders his or her copy of a birth certificate can ever look at it. Unless they go begging to the Department of Health. “Oh, please Mr. Director, may I show this to my sister — I need a written waiver.” Don’t tell me that’s anything close to a reasonable or honest account of the law. It’s pure nonsense.

And yet, it is EXACTLY what the mainstream media will promote with respect to this story until the end of time. “The Hawaii Department Heath has granted its one and only waiver ever for a citizen to show someone else his Hawaii birth certificate.” They’re repeating this garbage solely because it’s what the administration has told them to repeat, with an assist from the Hawaii DOH.

Yes, I do believe, Mark Thompson, that honesty would compel you to write Andrew Sullivan IMMEDIATELY and explain that he was quite wrong about you being right. You’ve spread a theory more delusional than any birther has ever dreamt of — that a citizen has no right to obtain a copy of his own birth certificate, and is subject to imprisonment if he posts (or even shows) a copy of the document to another without a waiver.

Now, perhaps, you could argue that he’s interpreting the law in such a way that no judge would ever interpret the law. Sure.

But that is a completely different statement than “the law does not say To protect the integrity of vital statistics records, to ensure their proper use, and to ensure the efficient and proper administration of the vital statistics system, it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital statistics records, or to copy or issue a copy of all or part of any such record, except as authorized by this part or by rules adopted by the department of health.”

You know why?

Because the law *DOES* say that.

I’d run with “obviously, this is falls under the ‘except as authorized by this part or by rules adopted by the department of health‘ clause!”, myself.

Then Mark can go back to discussing whether the exception is an exception that gets handed around liberally to anybody who shows up or whether the exception was because the dude was the President.

(1) Section 338-13 requires DOH to give the registrant a copy of any document he wants. Can’t say the law doesn’t say that!

(2) Section says that to protect the vital records, no one but the registrants who the DOH is required to make copies for may have access to them. Can’t say the law doesn’t say that!

And so, Jaybird . . . it’s just a question of “interpretation”? And judges are just being nice to let people see and copy their records, because the statute actually says that opposite of what I’ve set forth above? Cuz, as Mark argues, all registrants can do is LOOK at their records unless they get a waiver?

Jaybird …. you’re AWESOME.

How come Mark hasn’t yet address why Obama isn’t in jail for posting the short form without permission?

I don’t think that the argument is that it was illegal for Obama to request it nor that it was illegal for Obama to have access to it.

I think that the arguments have to do with what’s done afterwards.

Now, if you wanted to say that the law, as written, is waaaaaaaaay overbroad because it was probably talking about adoption (or bastardry, maybe) rather than the obvious case where someone would become President, I’d agree with you.

Hell, if you want to talk about how the US passes thousands of laws that are more for the whole “something to do” rather than in the hope of making society better, I’d be down. Hey, have you read the book _Three Felonies A Day_? Do you have a take on that?

Anyway, as for your question How come Mark hasn’t yet address why Obama isn’t in jail for posting the short form without permission?, I’d have to answer that the cops didn’t care because he’s upper class.

If he were lower class, they’d have pulled him over for driving without a seatbelt on, ask “do you know why I pulled you over?”, and then have dogs sniff the car. The “birth certificate” thing, if brought up at all, would be part of the 20ish charges brought against him to be pled down to a large fine, if he was lucky.

Powerful people can get away with crap that you or I can’t get away with. It’s true!

Again: Obama’s lawyer never even asked for a waiver or permission of any kind to show it to anyone else, but only to have the DOH give him the long form instead of the short form.

That alone causes your entire argument to collapse: neither the DOH nor Obama nor his lawyers believe that there is any restriction, of any kind, in Hawaiian law of what he can do with the document once he gets it.

You’re not being serious, or, as has been said, you’re being dishonest. I’d like to think it’s the former.

The fact that someone thinks that they aren’t breaking the law is sufficient evidence for us to conclude that someone did not, in fact, break the law?

I implied no such thing. My clearly expressed point is that absolutely no one in the governments of Hawaii or the United States has expressed agreement with your intrepretation in either word or deed.

So we have the context of the law, which is pertaining to DOH treatment of records; we have the fact that your interpretation means that no one can use their birth certificate (in either form) for any identification purpose whatsoever, which defeats the primary point of providing it in the first place; we have the fact that even if you’re right, the law would be blatantly unconstitutional; we have the fact that no one in either government, nor their private expert consultants, have provided a shred of a hint of agreement with your interpretation.

All of this put together means you’re just spitting into the wind (or I am, trying to convince someone who is apparently unwilling to be convinced of anything at all). There is no evidence backing up your position other than your (at best) implausible interpretation (in context) of the section of the law in question. ALL other evidence is against your interpretation, including the most obvious and likely interpretation (in context!) of the section of the law in question.

In an attempt to start over, I suspect that there are a lot of “you must be arguing this position because you have secret intention X!” assumptions here.

These assumptions are right or wrong depending on X, of course… but my suspicion is that X is wrong for a handful of the folks arguing.

My suspicion is that the suspicion of others is that we are arguing “they broke the law… therefore they need to go to jail! Forever! And forget Biden, instate Glenn Beck! HE’LL TELL US WHAT TO DO!!!!”

I think it’s closer to say that the intention of, at least me, is that “legislatures write laws that are overbroad to the point where people quite regularly break them all the time without even thinking about it… and, indeed, it would not even occur to a reasonable person that there would be a law covering this behavior! Three felonies a day, people.”

To see the argument that the law must not say that because that would be stupid if the law said that (and you broke it too, so why don’t you turn yourself in) doesn’t address the fundamental perspective that I, at least, am coming from.

And having it pointed out that if the law meant what it seems to say that that would mean that a lot of people break the law every day is an argument that very much makes sense to me up until the moment the argument is made that therefore it must not mean that.

The only assumption of intention I have here is that it seems likely to me that you came to a conclusion and, due to pride or somesuch, are unwilling to reconsider, despite the mountains of evidence against you.

Oh, and it’s not, as you imply, that some other people didn’t know the law: it’s that EVERYONE INVOLVED disagrees with your interpretation. No one from the White House to Hawaii, at any level of government involvement, buys your interpretation. Indeed, according to your interpretation, every time the State of Hawaii itself verified the information on the 2008 release of the certification of live birth, they were breaking the law too. NO ONE agrees with you.

That’s not proof, but it should be ample reason for you to at least consider the possibility that you’re wrong, and while Mark appears to be doing that, you do not.

No one from the White House to Hawaii, at any level of government involvement, buys your interpretation.

Have they spoken to this interpretation? I’m under the impression that they haven’t nor that they would, since it’s just a bunch of people talking on the internet. We are beneath their notice.

The fact that we are beneath their notice isn’t exactly an argument against this particular interpretation.

Indeed, according to your interpretation, every time the State of Hawaii itself verified the information on the 2008 release of the certification of live birth, they were breaking the law too. NO ONE agrees with you.

No, that is not what I said. Here’s what the law says:

(g) The department shall not issue a verification in lieu of a certified copy of any such record, or any part thereof, unless it is satisfied that the applicant requesting a verification is:
…
(3) A governmental, private, social, or educational agency or organization who seeks confirmation of a certified copy of any such record submitted in support of or information provided about a vital event relating to any such record and contained in an official application made in the ordinary course of the agency’s or organization’s activities by an individual seeking employment with, entrance to, or the services or products of the agency or organization;

It seems to me that there is wiggle room in there to claim that verification falls under (3). Even so, let’s say that the law is narrow to the point where it would not.

It would make sense to me to see that the law was written overbroadly with the intention of doing one thing while, at the same time, making criminals out of everybody else doing day-to-day stuff to the point where even people who could be expected to know the law break it so regularly that they assume that the law doesn’t mean *THAT* despite what the law, in fact, says.

That’s not proof, but it should be ample reason for you to at least consider the possibility that you’re wrong, and while Mark appears to be doing that, you do not.

Of *COURSE* I could be wrong.

But it’s like when I read, say, the First Amendment. People explain to me that it doesn’t mean that the government can’t prevent a political movie from being shown on PPV.

I read it again. They explain that it doesn’t mean *THAT*.

I read it again. They accuse me of dishonesty.

Now, of course, this law is much more dense than the First Amendment… but the arguments saying that the law must not mean what it says are all appeals to absurdity and claims that if it were illegal then other things would have necessarily followed.

If I have the viewpoint that many, if not most, laws are absurd in the first place, I will be unmoved by the first part and if I have the viewpoint that laws are only applied situationally then I will be unmoved by the second part.

I’d be more moved to see the parts of the law posted and have sentences diagrammed than to be told that I must have certain personality flaws to be willing to argue the positions I’m willing to argue in the first place.

> If I have the viewpoint that many, if not
> most, laws are absurd in the first place, I
> will be unmoved by the first part and if I
> have the viewpoint that laws are only
> applied situationally then I will be
> unmoved by the second part.

Nope. Point for me: if they thought they needed to speak to this interpretation, they would have. Obama’s lawyer explicitly said to the head of the DOH that they planned to provide the documents to the public; if either of them thought a waiver was needed to do this, they would have said so.

The fact that we are beneath their notice isn’t exactly an argument against this particular interpretation.

So you’re arguing that your interpretation — despite being completely new and relatively unfamiliar with the law — is correct, despite none of the people with actual experience in writing and applying the law having any appearance of any thought toward that interpretation whatsoever.

My, your ego is huge, innit?

No, that is not what I said.

Incorrect.

It seems to me that there is wiggle room in there to claim that verification falls under (3).

Obviously not, no. Not even close. The people requesting, and receiving, verification were none of those groups: they were simply interested citizen parties. Nor were the confirmations regarding any “vital event,” nor contained in any “ordinary course” of activities of any such agencies.

You’re losing more and more credibility.

It would make sense to me to see that the law was written overbroadly …

You’re trying to explain how an interpretation MIGHT work despite NO evidence to even consider that it is a reasonable interpretation. You’re putting the cart before the horse.

But it’s like when I read, say, the First Amendment. People explain to me that it doesn’t mean that the government can’t prevent a political movie from being shown on PPV.

Yes, those people are obviously stupid. I don’t see the connection to this.

Now, of course, this law is much more dense than the First Amendment… but the arguments saying that the law must not mean what it says are all appeals to absurdity and claims that if it were illegal then other things would have necessarily followed.

By the text alone, it is very unlikely it means what you say it does. But by the context and literally all other evidence, there remains no practical possibility it means what you say it does.

If I have the viewpoint that many, if not most, laws are absurd in the first place …

… then you’re question-begging by assuming this law means something absurd, rather than the far more obvious conclusion.

I’d be more moved …

I doubt it. The evidence against you is mountainous, and it’s not moved you in the slightest bit, despite not having any serious answer to any of it.

if either of them thought a waiver was needed to do this, they would have said so.

And so the fact that they did not say so is proof that they did not think that they needed a waiver and the fact that they did not think that they needed a waiver is proof that they did not need a waiver?

So you’re arguing that your interpretation — despite being completely new and relatively unfamiliar with the law — is correct, despite none of the people with actual experience in writing and applying the law having any appearance of any thought toward that interpretation whatsoever.

Not quite. I’m arguing that my interpretation is being argued against by people talking about me personally rather than quoting the law.

My, your ego is huge, innit?

It’s not my fault. The fact that people keep talking about me rather than the topic at hand feeds said ego.

Incorrect.

No, it’s correct! Thus you are refuted.

The people requesting, and receiving, verification were none of those groups: they were simply interested citizen parties. Nor were the confirmations regarding any “vital event,” nor contained in any “ordinary course” of activities of any such agencies.

In the course of yelling at me that I’m reading the law too narrowly, you say this?

Let’s look at the law again. Why not?

(g) The department shall not issue a verification in lieu of a certified copy of any such record, or any part thereof, unless it is satisfied that the applicant requesting a verification is:
…
(3) A governmental, private, social, or educational agency or organization who seeks confirmation of a certified copy of any such record submitted in support of or information provided about a vital event relating to any such record and contained in an official application made in the ordinary course of the agency’s or organization’s activities by an individual seeking employment with, entrance to, or the services or products of the agency or organization;

I think that I could say, with a straight face, that “interested citizen parties” qualify as a “private organization” (maybe even a “social organization”!) seeking to confirm the eligibility of Obama to President would fall under (3).

If you claim that they would not, I would like to then ask “and which of us is reading the law narrowly?”

You’re trying to explain how an interpretation MIGHT work despite NO evidence to even consider that it is a reasonable interpretation.

Not exactly. I’m trying to explain how we have a system where laws are regularly written overbroadly and this law is an example of one of them.

Yes, those people are obviously stupid. I don’t see the connection to this.

The movie was, however, banned from being shown on PPV and the case went all the way to the Supreme Court.

It’s Citizens United.

We live in a world with people who read laws and say “they don’t mean *THAT*!” and do what they want to anyway.

That’s the point I was making.

By the text alone, it is very unlikely it means what you say it does.

I quoted the text alone.

I am just saying that “it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital statistics records, or to copy or issue a copy of all or part of any such record, except as authorized by this part or by rules adopted by the department of health” means “it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital statistics records, or to copy or issue a copy of all or part of any such record, except as authorized by this part or by rules adopted by the department of health.”

In response, people are telling me that it doesn’t mean that and I have a big ego.

then you’re question-begging by assuming this law means something absurd

Perhaps, but telling me that the law doesn’t mean what it says is more evidence of absurdity on the law’s part than evidence of question-begging on my part.

The evidence against you is mountainous, and it’s not moved you in the slightest bit, despite not having any serious answer to any of it.

The evidence against me consists of people telling me that the President is surrounded by competent people who know what they’re doing, by appeals to how restrictive the law must be in response to my saying that it’s not necessarily *THAT* restrictive, and by personal attacks (mountainous though they may be).

And so the fact that they did not say so is proof that they did not think that they needed a waiver

No, just very strong evidence of it.

… and the fact that they did not think that they needed a waiver is proof that they did not need a waiver?

No, just very strong evidence of it, especially in light of the fact that there is NO counterevidence that they DID need a waiver.

Not quite. I’m arguing that my interpretation is being argued against by people talking about me personally rather than quoting the law.

I have quoted and made several direct references to the law, and I’ve made only a couple of references to you personally. And here comes another: stop being such a whiner. You’ve talked significantly more about people talking about you than I have talked about you.

In the course of yelling at me that I’m reading the law too narrowly

I did no such thing. My contention is that you are reading it far too BROADLY.

I think that I could say, with a straight face, that “interested citizen parties” qualify as a “private organization” (maybe even a “social organization”!) seeking to confirm the eligibility of Obama to President would fall under (3).

Sure, if you ignore the fact that such a confirmation would be unrelated to any “official application” by that “social organization” about Obama seeking employment with (etc.) that organization.

(I remind myself that I said I doubted that diagramming sentences would help.)

If you claim that they would not, I would like to then ask “and which of us is reading the law narrowly?”

Me. As with the other section, you are reading it too broadly.

I’m trying to explain how we have a system where laws are regularly written overbroadly and this law is an example of one of them.

Yes. Question-begging fallacy again. You have to first demonstrate that your interpretation makes ANY sense, and you’re utterly failing. After you do that — which you can’t — then you could try to explain how it is overbroad. But it’s not overbroad: your interpretation is wrong.

The movie was, however, banned from being shown on PPV and the case went all the way to the Supreme Court.

Yes, I realize this. McCain-Feingold was obviously unconstitutional. The Supreme Court recognized this fact. The people who think the law was NOT unconstitutional — that the government has the authority to restrict political speech — are stupid.

We live in a world with people who read laws and say “they don’t mean *THAT*!” and do what they want to anyway.

Yes. Those people are stupid. But that doesn’t back up your claim that this law means what you say. You’ve provided no evidence that it does.

I quoted the text alone.

Yes, exactly: you ignored the context.

I am just saying that “it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital statistics records, or to copy or issue a copy of all or part of any such record, except as authorized by this part or by rules adopted by the department of health” means “it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital statistics records, or to copy or issue a copy of all or part of any such record, except as authorized by this part or by rules adopted by the department of health.”

No, you’re not. Now I will say you’re being dishonest: you are saying that this rule applies to documents already given to private people, rather than just documents in the possession of the government. You are not merely saying it says what it says, you are adding your own interpretation to it that is not implied by the text.

In response, people are telling me that it doesn’t mean that …

You’re being dishonest again. No one said it doesn’t mean what it says, and if you really don’t understand that, you’re too stupid for me to continue conversing with. Further, you have flatly ignored much of the evidence against your interpretation.

… and I have a big ego.

Incorrect. I said you had a big ego in regards to something slightly different: when you said that your interpretation — not your quote of the law — wasn’t correct despite being completely unknown by all actually relevant government officials and their personal lawyers.

Perhaps, but telling me that the law doesn’t mean what it says

No one did that. Please do not continue to repeat this obvious lie.

The evidence against me consists of people telling me that the President is surrounded by competent people who know what they’re doing …

Incorrect: the evidence is that EVERYONE involved in both governments appears to disagree with your interpretation, not merely some of the people surrounded by Obama.

… by appeals to how restrictive the law must be in response to my saying that it’s not necessarily *THAT* restrictive …

… backed up by evidence, which you’ve not done …

and by personal attacks (mountainous though they may be).

Again, no, I’ve barely mentioned YOU, and did so less than you did, until I called you out for dishonesty at the end of this particular comment.

And I will do it again: you’ve dishonestly ignored the other provided evidence: such as that the context of the law is pertaining to DOH treatment of government records; and that your interpretation completely precludes any personal use of one’s own birth certificate.

You obviously don’t know much about legal interpretation, so I’ll give you some tips. All judges, of all stripes, will reject interpretations — even if they are possible ones — that have no documented history in the making of the law, and further make no sense when applied.

So, for example, if a (badly written, and badly conceived) law says, “all lights sold must be fluorescent,” and someone says, “that includes all light-colored pants,” a judge would say, “even if I could wrap my head around that as a possible interpretation, there’s no evidence that the legislature intended it, and it would make no sense to apply it in that manner.”

This is the case with your interpretation: it ignores the context, there’s no history of legislative intent to back it up, and it makes no sense to apply it that way. Therefore, it’s wrong.

I am pretty much done with this thread, but there are few things in here that warrant a quick response.

First, you write:

All judges, of all stripes, will reject interpretations — even if they are possible ones — that have no documented history in the making of the law, and further make no sense when applied.

This is only true if we’ve even reached the point where we can say that the actual language of the statute itself admits of several interpretations or possibly contains some sort of drafting error. It’s not enough to say that “any person” means “any government official” because the statute is primarily concerned with DOH actions; there needs to be some basis for ambiguity in that phrase in the first place.

In your hypothetical, the word “lights” has several commonly understood meanings. You then look to the context of the statute to figure out which meaning applies.

“Any person,” however, does not have several commonly understood meanings unless you count the distinction between legal and natural persons, which is irrelevant for our purposes here.

Now, it seems to me that there is a real question of interpretation on the meaning of “vital statistics record,” ie, does that refer to copies and originals or just originals? If only originals, then the effect of the statute is primarily to restrict people with access to the originals, regardless of whether they work for the DOH, but who will in most circumstances be employees of the DOH. If copies and originals, then the effect is to restrict anyone who obtains a copy for any reason.

And that question depends on whether we interpret this as in part a privacy statute. I think the “proper use” language says that it is, though I’m guessing you disagree.

But your argument that “proper use” does not create a privacy statute is going to be essentially the same as your argument that “even if it creates a privacy statute, the interpretation advanced is incorrect and unsupportable”: to wit, that the results are absurd and unconstitutional.

To which I have countered:
1. Similarly worded statutes restricting transmission of certain records or data by private parties have long been held constitutional (there is, however, ample room for as-applied challenges).
2. You also, IMHO, get absurd results under your theory, in that the statute would then explicitly permit access to and use of highly sensitive government documents and data by persons with a very minimal or specifically limited interest in those documents and data despite the explicit intent of the statute being to ensure that said data is properly used.

Additionally, it is my position that both the absurd results and as-applied unconstitutionality issues are addressed by providing wide authority to the DOH to carve out exemptions from the law.

Now, if it turns out that Hawaii has some other statute that would address the privacy concerns with respect to your theory, then my argument suffers mightily since the problems with your theory will have been addressed by another duly enacted law, whereas the problems with my theory are left to be addressed by an administrative agency. Also, that would somewhat hurt (but would not necessarily be fatal to) my argument that this is in part a privacy statute.

This is only true if we’ve even reached the point where we can say that the actual language of the statute itself admits of several interpretations or possibly contains some sort of drafting error.

Incorrect. You’re still unjustifiably coming to the text from the assumption that this is talking about documents possessed by anyone at any time, instead of documents possessed by government.

There is no error in the text, you’re just making unwarranted assumptions about what it means.

It’s very simple: there is NO EVIDENCE of any kind that applies to documents I’ve legally obtained. None. The statutes are about DOH handling of documents; once they leave the DOH, these statutes don’t apply.

Additionally, it is my position that both the absurd results and as-applied unconstitutionality issues are addressed by providing wide authority to the DOH to carve out exemptions from the law.

That’s irrational, because it still means the DOH has to carve out exemptions every time someone wants to get a passport.

Now, if it turns out that Hawaii has some other statute that would address the privacy concerns with respect to your theory …

More question-begging: the privacy concerns state in the law are regarding government acts, period.

Again, Mark: NO ONE in any official capacity who has said anything about this — including the governor, the head of the DOH, and the various officials at the hospital itself — believes your theory. NO ONE. They’ve all violated your made-up interpretation of the law, many times over, as do other Hawaiians every single day.

Your interpretation has at best marginal textual support — if you ignore the context that these rules are for government — and has no historical, legislative comment, or as-applied evidence of any kind whatsoever.

That’s irrational, because it still means the DOH has to carve out exemptions every time someone wants to get a passport.

No, actually, it doesn’t. It means that the DOH can issue a rule saying that it is a permissible use of such a document to use it to obtain a passport. Or to do x,y,z, or whatever. Once a rule is made, there’s no need to carve out exemptions every time someone acts in accordance with it.

NO ONE in any official capacity who has said anything about this — including the governor, the head of the DOH, and the various officials at the hospital itself — believes your theory. NO ONE. They’ve all violated your made-up interpretation of the law, many times over, as do other Hawaiians every single day.

If, as I say, this is ultimately a function of the DOH’s regulations, I don’t see why anyone would need to worry about my theory of the law itself one way or another. My theory says that:
1. The statute essentially makes it unlawful to do most things with birth certificates unless the DOH has deemed the use permissible, whether by rule or otherwise.
2. The DOH can pretty much deem whatever categories of uses of what forms of documents it likes permissible.
3. The DOH had a rule that permitted all sorts of uses of the so-called short-form certificate, but very few uses of the so-called long-form certificate.

Now if someone wanted to obtain the long-form certificate for something other than those very few specific uses, what would they do? They would write pretty much exactly the letter that was written.

the DOH can issue a rule saying that it is a permissible use of such a document to use it to obtain a passport

Not only is there no indication this has ever happened, but there is no indication that anyone other than you and Jaybird thinks such a thing might ever be necessary.

1. The statute essentially makes it unlawful to do most things with birth certificates unless the DOH has deemed the use permissible, whether by rule or otherwise.

There is no evidence that the statute says this.

2. The DOH can pretty much deem whatever categories of uses of what forms of documents it likes permissible.

There is no evidence it ever has done such a thing.

Now if someone wanted to obtain the long-form certificate for something other than those very few specific uses, what would they do? They would write pretty much exactly the letter that was written.

Wow, Mark. No, not remotely. In fact, the letter sent by Obama’s lawyer disagrees, completely, with your interpretation: it does not — in any way whatsoever — ask for permission of any kind to use the “long form” certificate for any particular use at all. The waiver asked for is specifically to GET the “long form” certificate, not to use it in any particular way. And the response from the DOH is written along the same lines.

So no, the letter written is completely different from what would be written if your interpretation were correct.

I say once again: thankfully, Mark Thompson is not a lawyer. (At first, I wasn’t sure if you were or not; but I’m certain at this point, because no lawyer could possibly believe the things you’re saying.)

So you are saying that when I read “it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital statistics records, or to copy or issue a copy of all or part of any such record, except as authorized by this part or by rules adopted by the department of health” that when I think that someone has disclosed the information contained in the records under circumstances that are not explicitly authorized by that part or by the rules adopted by the department of health, I need to not look at the law but, instead, how other people have interpreted the law?

So you are saying that when I read [the law] that when I think that someone has disclosed the information contained in the records under circumstances that are not explicitly authorized by that part or by the rules adopted by the department of health, I need to not look at the law but, instead, how other people have interpreted the law?

No. Stop lying. I’ve been very clear: I do not question what the law says, I am saying your interpretation of the law is incorrect.

By continually asserting that the law’s meaning is self-evident from the language you are committing the question-begging fallacy, and by doing it continually, despite correction, you are destroying any credibility you might have had.

I asked a clarification question and you responded with “No. Stop lying.”

I am not asserting that the law’s meaning is self-evident from the language it is using.

I am, however, asserting that if the law’s meaning is not self-evident from the language it uses, the burden of proof is on the person who keeps pointing to all of the folks out there who agree that it doesn’t mean that to explain *WHY* it doesn’t mean that (and use more than just the fact that there are all those folks out there who agree that it doesn’t mean that).

“Hey, that guy doesn’t have any clothing on.”
“Silly child. Look at all of these people, much smarter than you, who have agreed that the outfit is made of cotton, and silk, and the finest velour. They have agreed upon the purple hues, the yellows, and the deep, lush reds. Indeed, by claiming that the guy is naked, you destroy whatever credibility you may have once had!”

It has come to my attention that a blog, The League of Ordinary Gentlemen (http://ordinary-gentlemen.com) has posted a copy of Barack Obama’s Certificate of Live Birth without obtaining the legally-required waiver from your office. See HRS 338-01 et seq; 454 Jaybird 605, 616-18 (2011). As you are aware, this violation of Hawaii’s criminal code presents a grave threat to public order and national security. Specifically, the Obama administration’s claim that its hands were tied for three years we be seriously undermined if others are encouraged to reproduce the document without consequence.

I’ve changed my mind. Mark and Jaybird are correct. Moreover, I think the critical language in 338-18 is actaully the following:

or to disclose information contained in vital statistics records

As Jaybird notes, what’s important is THE LAW, not how other people have interpreted it. Consequently, the name “Barack Hussein Obama” may not be disclosed (even by utterance) to anyone because it is “information” which is certainly “contained” in the relevant records. Similarly, the date “August 4, 1961″ may never be mentioned again; nor the month of August; nor the year 1961 or the numbers 1, 4, 9, 6 and 1; nor any other letter or number appearing on the document; nor the color green; nor hereinafter may any document be printed on paper, or with in, as this all “information” contained in the record.

Let us not hear protests regarding absurd results! The LAW has spoken!

If Ibruprofen is illegal — the law’s the law! We need a post my Mark expressing moral outrage that the child was not imprisoned — for life.

Come to think of it, wasn’t Andrew Sullivan arrested for smoking pot on the beach? As I recall, the presiding judge found the prosecutor’s refusal to press charges to be absolutely lawless. Perhaps Mark will share his legal expertise on the laws governing the possession of paper made of hemp. I bet they’re even more literal than those governing the possession of a paper birth certificate.

You’re the only one interested in the whole laws-unequally-applied-to-the powerless angle. I never saw it’s relevance, other than a distraction from Mark’s transparent attempt to give Obama cover for the delay in releasing the long form. Note that he’s been careful to avoid addressing that the fact that his argument (1) makes this blog’s posting of either the long or short form without a waiver a violation of the law and (2) makes this blog’s dissemination of Obama’s name, birthdate, parent’s names or the use of the English language a violation of the law.

Robert, you have to be more subtle. Nobody would believe you could go to jail for blogging, or displaying a lawfully-issued birth certificate to get a license at the DMV — even though those are clearly crimes under the literal, sensible and moral reading of the statute that Mark has so eloquently articulated. Wait until he writes a post on the DOH’s discretion to recommend probation for first-time birth certificate-displayers, and take it from there.

Nobody would believe you could go to jail for blogging, or displaying a lawfully-issued birth certificate to get a license at the DMV — even though those are clearly crimes under the literal, sensible and moral reading of the statute that Mark has so eloquently articulated.

To the extent that it lends itself to being interpreted to mean the opposite of what it literally says, it is poorly written. I don’t see how the Legislature failed to include an enactment statement emphasizing that its specific provisions authorizing the copying of records for registrants should not be interpreted to cede the ownership and control of all language and facts to the Hawaii Department of Health. Particularly since people naturally view the the DOH as the world’s sole and exclusive copyright holder.

Which also highlights what a poorly drafted blog post this is. The narrow focus on the administration’s criminal posting of the BC obscured the administration’s holocaust-like use of the alphabet to announce the posting. Obama’s press conference employed 23 of the 26 letters, all of which appear in the vital records secured in the DOH’s vault. This wanton dissemination of information should really have been the focus of the post, because the administration did not even attempt to obtain a waiver to do that.

NE, you’re right, of course, subtlety isn’t my strong suit. I loved the exchange between you and Jaybird, though legal stuff hurts my head.
I do hope you’ll continue to comment here. They can change the name to something that is..er, inclusive of the distaff side.

You can’t blame me (or Obama) for the fact that his opponents are batshit. I mean, you can, and you do, but it’s every bit as silly as comparing random idiot kids to a highly paid, top-rated, and best-selling professional idiot.

You keep using the same tactic, sir; it makes Obama’s presidency stink no less. Trolling for the dumbest MFers on the other side is Toy Dept. stuff. Even if one side’s dregs are worse than the other’s, that proves nothing.

“You keep using the same tactic, sir; it makes Obama’s presidency stink no less.”

Eeeeeexcept Obama is a good president, unless your only important measuring stick is taking an Ayn Rand ideal, overlaying it and seeing how much the president and the ideal overlap.

Obama is simply a good president doing well with an awful hand. He just lacks sufficient demographic groups that are intelligent and invested enough in the health of the country to give him unambiguous signals and political support.